Legislature(2015 - 2016)BELTZ 105 (TSBldg)

04/16/2016 09:00 AM Senate JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSHB 147(JUD) Out of Committee
Moved HB 308 AM Out of Committee
Moved SCS CSHB 317(JUD) Out of Committee
Moved SCS CSHB 126(JUD) Out of Committee
+ Bills Previously Heard/Scheduled: TELECONFERENCED
Heard & Held
-- Public Testimony --
**Streamed live on AKL.tv**
            HB 126-CODE OF MILITARY JUSTICE; APPEALS                                                                        
10:26:47 AM                                                                                                                   
CHAIR   MCGUIRE  reconvened   the  meeting   and  announced   the                                                               
consideration of  HB 126.  She noted this  is the  first hearing,                                                               
SCS CSHB 126(STA)  is before the committee, and  the intention is                                                               
to move the  bill today. She deferred to Senator  Costello to say                                                               
how much of an overview she  would like because the other members                                                               
already heard the bill.                                                                                                         
SENATOR COSTELLO requested an adequate overview.                                                                                
10:27:44 AM                                                                                                                   
CHRISTOPHER  WEAVER, Lieutenant  Colonel, Alaska  National Guard,                                                               
Staff  Judge Advocate  for the  Adjutant  General, Department  of                                                               
Military  &  Veterans'  Affairs  (DMVA),  Joint  Base  Elmendorf-                                                               
Richardson, Alaska,  explained that  HB 126 was  introduced after                                                               
the  Office of  Complex  Investigations with  the National  Guard                                                               
Bureau issued  a report  stating that  the Alaska  National Guard                                                               
did not have a functioning military justice program.                                                                            
He  related  that the  Alaska  National  Guard  does not  have  a                                                               
codified punishment  system and  the other  tools it  attempts to                                                               
use are inadequate, resource intensive,  and generally do not fit                                                               
the  punishment  scheme.  For  this  reason  a  Uniform  Code  of                                                               
Military  Justice  (UCMJ) and  Alaska  Code  of Military  Justice                                                               
(ACMJ)  are needed.  The idea  is that  civilians will  prosecute                                                               
civilian crimes  and the military will  prosecute military crimes                                                               
or the  crimes that  affect the  unit. If  there's a  light crime                                                               
like sexual assault,  the military would look at it  to see if it                                                               
meets  military  elements.  He   noted  that  this  would  affect                                                               
nonjudicial  punishment for  minor  offenses and  courts-martials                                                               
for more  serious offenses. He  directed attention to  a document                                                               
in the packets  that enumerates various offenses  and the maximum                                                               
punishment as it relates to confinement.                                                                                        
SENATOR COSTELLO  asked him  to talk about  the process;  how the                                                               
legislation was drafted, who was  involved, the response, and the                                                               
significance of the bill.                                                                                                       
COLONEL  WEAVER spoke  to the  Guard's  input in  the bill.  They                                                               
tried to keep  the process open and brought in  people of various                                                               
ranks  to run  through scenarios  and trainings.  They talked  to                                                               
different commanders  to learn  what they  needed to  ensure good                                                               
order and discipline. They looked  at what other states have done                                                               
recently to implement a state military code.                                                                                    
CHAIR MCGUIRE  recalled that two  years ago the  Senate Judiciary                                                               
Committee  brought   in  corrections   officers  to   talk  about                                                               
corrections  issues. Thereafter  the  committee  returned to  the                                                               
issue of the  military and the National Guard.  She didn't recall                                                               
if there was  a full hearing or just discussion  about the sexual                                                               
harassment  claims  in  the  Alaska  National  Guard.  She  asked                                                               
Senator Coghill to talk about the report she advocated.                                                                         
10:34:36 AM                                                                                                                   
SENATOR COGHILL  said the committee  was looking  for information                                                               
about the same issue that the National Guard was dealing with.                                                                  
CHAIR  MCGUIRE said  some members  were vocal  about the  culture                                                               
within the  Alaska National Guard  under former  Adjutant General                                                               
Katkus  and   former  Deputy  Commissioner  McHugh   Pierre.  She                                                               
recalled three areas of concerns:  a culture of sexual harassment                                                               
with  no  opportunity  to  make a  claim;  misuse  of  government                                                               
property; and drug  misuse. This played out in  the last governor                                                               
campaign and  election. Commissioner and Adjutant  General Laurie                                                               
Hummel  came  in  with  the mission  to  address  those  concerns                                                               
through the  update of the  Alaska Code of Military  Justice that                                                               
was last updated in 1955. The  idea is that updating the code and                                                               
the  process by  which individuals  are disciplined  will inspire                                                               
more confidence in the system  and raise morale. The intention is                                                               
to correct  the action and get  the individual back on  the right                                                               
COLONEL WEAVER agreed that is the goal.                                                                                         
10:37:56 AM                                                                                                                   
CHAIR MCGUIRE  said the  remaining controversy  with the  bill is                                                               
the amendment to  reinsert the no turndown clause.  In a previous                                                               
committee Senator  Huggins expressed  concern with  the provision                                                               
and offered an amendment to remove  it. The remainder of the bill                                                               
is relatively uncontroversial.                                                                                                  
10:38:31 AM                                                                                                                   
SENATOR COGHILL said he suspects  there will be a cost associated                                                               
with the  bill despite the fiscal  notes that were zeroed.  He is                                                               
satisfied at this point that  the federal government will pick up                                                               
much of the adjudication costs.                                                                                                 
CHAIR  MCGUIRE thanked  Colonel  Weaver for  his  service to  the                                                               
country and state.  She asked him to synthesize why  he wants the                                                               
no turn  back clause  in the bill,  how National  Guard personnel                                                               
are disciplined, and what a courts-martial means.                                                                               
COLONEL  WEAVER said  a no  turn down  provision for  nonjudicial                                                               
punishment means a soldier facing  a minor offense charge may not                                                               
decline the  imposition of nonjudicial  punishment in favor  of a                                                               
courts-martial. In  the Senate  State Affairs  Committee, Senator                                                               
Huggins argued  against having  a no turn  down provision  in the                                                               
nonjudicial  punishment regulations.  The  Alaska National  Guard                                                               
would prefer  that provision  be adopted  in regulation,  but not                                                               
without having a conversation with Senator Huggins first.                                                                       
10:42:29 AM                                                                                                                   
CHAIR MCGUIRE  indicated she  would take  an at-ease  waiting for                                                               
Senator Wielechowski to return with an amendment.                                                                               
SENATOR COGHILL  asked if this  code will make it  more difficult                                                               
for  the Alaska  National  Guard to  be flexible  and  help in  a                                                               
COLONEL WEAVER replied it will  have no effect whatsoever in that                                                               
CHAIR MCGUIRE  reviewed the recent  discussion and  asked Senator                                                               
Wielechowski to offer his amendment.                                                                                            
10:44:14 AM                                                                                                                   
SENATOR  WIELECHOWSKI moved  to  adopt Amendment  1, labeled  29-                                                               
                          AMENDMENT 1                                                                                       
     OFFERED IN THE SENATE                                                                                                      
          TO:  SCS CSHB 126(STA)                                                                                                
     Page 9, line 8:                                                                                                            
          Delete "confinement of more than one year is sought"                                                                  
          Insert "the member of the militia is accused of                                                                       
     committing an offense that is punishable by confinement of                                                                 
     more than one year"                                                                                                        
     Page 27, line 1:                                                                                                           
          Delete "authorized"                                                                                                   
          Insert "imposed"                                                                                                      
     Page 27, line 5:                                                                                                           
          Delete "authorized"                                                                                                   
          Insert "imposed"                                                                                                      
SENATOR COGHILL objected.                                                                                                       
SENATOR  WIELECHOWSKI   explained  that  both  Amendment   1  and                                                               
Amendment  2 reverse  changes made  in the  Senate State  Affairs                                                               
Committee  and  restore  the legislation  to  the  language  that                                                               
passed the House. He deferred to  the sponsor to provide her view                                                               
of why this is important.                                                                                                       
10:45:16 AM                                                                                                                   
REPRESENTATIVE  GABRIELLE   LEDOUX,  Alaska   State  Legislature,                                                               
sponsor of  HB 126, described Amendment  1 as an antidote  to the                                                               
poison  pill  amendment  adopted  in  Senate  State  Affairs.  It                                                               
reverses making  a felon  of a National  Guard member  who didn't                                                               
show up for work for a  couple of days. The State Affairs version                                                               
of the  bill goes against  what the  legislature is trying  to do                                                               
this session  to keep  nonviolent offenders out  of jail,  and it                                                               
goes against what is intended in HB 126.                                                                                        
10:48:17 AM                                                                                                                   
CHAIR  MCGUIRE  said  she  understands that  point  of  view  but                                                               
Senator Huggin's point  is that a person serving  in the military                                                               
would want an opportunity to clear their name.                                                                                  
SENATOR WIELECHOWSKI clarified that  she was speaking to proposed                                                               
Amendment  2;   Senator  Stoltze   offered  the   amendment  that                                                               
Amendment 1 reverses.                                                                                                           
CHAIR MCGUIRE  restated Senator  Huggins' concern  with proposed,                                                               
yet to be offered, Amendment 2.                                                                                                 
REPRESENTATIVE LEDOUX said she is  prepared to defer to the Guard                                                               
on upcoming Amendment 2.                                                                                                        
CHAIR MCGUIRE said she has no concern with Amendment 1.                                                                         
SENATOR COGHILL said  the period of confinement is  a policy call                                                               
and then removed his objection to Amendment 1.                                                                                  
10:50:59 AM                                                                                                                   
CHAIR MCGUIRE  found no  further objection,  and Amendment  1 was                                                               
10:51:11 AM                                                                                                                   
SENATOR  WIELECHOWSKI moved  to  adopt Amendment  2, labeled  29-                                                               
                          AMENDMENT 2                                                                                       
     OFFERED IN THE SENATE                                                                                                      
          TO:  SCS CSHB 126(STA)                                                                                                
     Page 3, lines 8-10:                                                                                                        
          Delete "or prohibit a member of the militia from                                                                      
     declining the imposition of nonjudicial punishment in favor                                                                
     of a courts-martial"                                                                                                       
SENATOR COGHILL objected.                                                                                                       
10:51:30 AM                                                                                                                   
SENATOR WIELECHOWSKI  explained that  Amendment 2  essentially is                                                               
the no turn down provision. He  deferred to the National Guard to                                                               
speak to  the provision.  He said he  respects their  opinion and                                                               
they have experience with the provision in other states.                                                                        
COLONEL WEAVER deferred to Colonel  Hummel or Deputy Commissioner                                                               
CHAIR MCGUIRE  asked Colonel  Hummel to explain  why the  no turn                                                               
down provision is important.                                                                                                    
10:52:29 AM                                                                                                                   
COLONEL LAURIE HUMMEL,  Commissioner/Adjutant General, Department                                                               
of  Military  &  Veterans  Affairs  (DMVA),  deferred  to  Deputy                                                               
Commissioner Doehl to  talk about the Guard's opinions  on the no                                                               
turn down provision.                                                                                                            
10:53:15 AM                                                                                                                   
RETIRED  COLONEL BOB  DOEHL, Deputy  Commissioner, Department  of                                                               
Military & Veterans Affairs  (DMVA), Anchorage, Alaska, suggested                                                               
looking at  this from  the perspective that  all ranks  looked at                                                               
the issue from a military context  going forward with the no turn                                                               
down provision.  He pointed  out that  the military  has numerous                                                               
programs  with far  more severe  consequences that  have no  turn                                                               
down  provisions and  they  have been  repeatedly  upheld in  the                                                               
judicial  process  as  meeting appropriate  due  process  to  the                                                               
accused.  Therefore, it  has been  demonstrated  in the  military                                                               
context  that  we can  effectively  be  just to  the  individuals                                                               
facing these programs, he said.                                                                                                 
He said  that if the legislature  decides to implement a  no turn                                                               
down provision, the  Guard will execute it but it  will result in                                                               
increased risk  to the force,  because the Alaska  National Guard                                                               
receives  no additional  funding from  the National  Guard Bureau                                                               
for implementing the provision. It will be costly to comply.                                                                    
10:55:25 AM                                                                                                                   
SENATOR COSTELLO asked  if there is data showing, if  the no turn                                                               
down provision was offered, the  percentage of time someone would                                                               
prefer a courts-marital.                                                                                                        
COLONEL DOEHL said it would  be speculative to offer a percentage                                                               
at  this  point,  but  it's   likely  there  would  be  far  more                                                               
challenges in the first year to test the system.                                                                                
SENATOR COSTELLO  asked for  an estimate of  what one  case might                                                               
COLONEL DOEHL  said it depends  on the  nature of the  matter but                                                               
more than  the dollar  cost it's  the number  of days  the people                                                               
spend in the process. One or  two people handling a simple matter                                                               
something like  dereliction of duty  could result in the  loss of                                                               
20 or  30 additional training  days. That means they  wouldn't be                                                               
as prepared  when they are deployed  or to serve the  state in an                                                               
SENATOR  WIELECHOWSKI   asked  Colonel  Weaver  to   discuss  the                                                               
experience in  other states  and questioned  whether the  no turn                                                               
down is a federal provision.                                                                                                    
COLONEL WEAVER said  the trend is moving toward no  turn down, as                                                               
recommended in  the model code  by the National Guard  Bureau. He                                                               
noted  that  Kansas felt  hamstrung  and  recently changed  their                                                               
statutes  to put  in a  no turn  down provision.  He related  his                                                               
experience that  good soldiers  that make  a mistake  will accept                                                               
this whereas the bad soldier  will ask for the courts-martial. He                                                               
estimated a special courts-martial costs from $3,000 to $7,000.                                                                 
10:59:00 AM                                                                                                                   
CHAIR  MCGUIRE recommended  moving the  bill along  "as is."  She                                                               
said there  is no reason you  can't come back later  on with more                                                               
discrete evidence  and focus  to get the  no turn  down provision                                                               
restored.  She further  suggested asking  the federal  government                                                               
for  more grant  money to  address the  long-standing problem  in                                                               
Alaska  that yielded  a change  in leadership;  Alaska's code  of                                                               
military justice has  just been updated for the  first time since                                                               
1955 and resources are needed to continue to move forward.                                                                      
She deferred to  Senator Wielechowski as to whether  he wanted to                                                               
move forward with Amendment 2.                                                                                                  
11:01:26 AM                                                                                                                   
SENATOR WIELECHOWSKI said  he respects her opinion,  but he can't                                                               
in  good  conscience remove  the  amendment.  Without it,  combat                                                               
readiness will be  diminished and the process of  justice will be                                                               
slowed. He indicated he will offer  the amendment on the floor if                                                               
it fails in committee.                                                                                                          
SENATOR  COGHILL said  it's  appropriate  that individuals  whose                                                               
career is on the line are able to defend themselves.                                                                            
CHAIR MCGUIRE requested a roll call.                                                                                            
A roll call  vote was taken. Senator Wielechowski  voted in favor                                                               
of Amendment 2 and Senators  Costello, Coghill, and McGuire voted                                                               
against it. Therefore, Amendment 2 failed by a 1:3 vote.                                                                        
11:03:21 AM                                                                                                                   
CHAIR   MCGUIRE   found   no   further   amendments,   questions,                                                               
discussion, or public testimony.  She closed public testimony and                                                               
solicited a motion.                                                                                                             
11:03:26 AM                                                                                                                   
SENATOR COGHILL moved to report the  amended Senate CS for CS for                                                               
House Bill  126, from  committee with  individual recommendations                                                               
and attached fiscal note(s).                                                                                                    
CHAIR  MCGUIRE   announced  that  without  objection,   SCS  CSHB
126(JUD)  is   reported  from   the  Senate   Judiciary  Standing                                                               

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